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Nevertheless the effect of the first clause of section 162 clearly brings out the departure made by the Indian Law in one material particular, and that is the authority given to the Court to hold a preliminary enquiry into the character of the document.

That is why we think that the arguments so elaborately and ingeniously built up by Mr. Seervai on the basis of the background of the breaks down in the light of the provisions of section 162.

We may add that in substance and broadly stated the consensus of judicial opinion in this country is in favour of this conclusion.

(Vide: e.g., Kaliappa Udayan vs Emperor (2); R. M. D. Chamarbaugwala vs Y. R. Parpia (3); Governor General in Council vs H. Peer Mohd. Khuda Bux & Ors.

(4); The Public Prosecutor, Andhra vs Venkata Narasayya (5); and ljjat Ali Talukdar vs Emperor (6)).

Therefore we think it is unnecessary to refer to these decisions in detail or to examine the reasons given by them in support of the conclusion reached by them.

There are, however, two decisions which have struck a note of dissent, and so it is necessary to examine them.

In W. section Irwin vs D. J. Reid (7) it appears that the Court was incidentally dealing with (1) ; ; (2) A.I.R. 1937 Mad.

(3) A.I.R. 1950 Bom.

(4) A.I.R. 1950 East Punjab 228.

(5) A.I.R. 1957 Andhra 486.

(6) I.L.R. [1944] 1 Cal 410.

(7) (192I) I.L.R 396 the scope and effect of section 123 of the Act.

In that case the plaintiff was one of the members of the committee, known as the Champaran Agrarian Enquiry Committee, and as such member he had effected a settlement between the indigo planters and the tenants about the partial refund of tawan or remission of sarabeshi.

The defendant Irwin wrote three letters to the members after the settlement which taken together would import that his consent to the settlement was obtained by misrepresentation and all facts were not disclosed to him.

Thereupon Reid filed a suit claiming Rs. 50,000 as damages against Irwin for making the said defamatory statements which according to him greatly injured his credit and reputation and had brought him into public odium and contempt.

It appears that at the trial an attempt was made to compel the production of the minutes of the com mittee.

The, said attempt failed because the Government of Bihar and Orissa claimed privilege under section 123.

In appeal it was urged that the privilege should not have been upheld, but the appellant 's plea was not accepted by the Court.

"The public officer concerned", observed Mookerjee, A. C. J., "and not the judge is to decide whether the evidence referred to shall be given or withheld.

If any other view were taken the mischief intended to be avoided would take place as the judge could not determine the question without ascertaining the contents of the document, and such enquiry, if it did take place, must, for obvious reasons take place in public".

In support of this decision the learned judge referred to some English decisions; amongst them was the case of Beatson vs Skene (1).

It would be noticed that in making these incidental observations the Court has not considered the true effect of the provisions of section 162.

Indeed no reference was made to the said section and the matter does not appear to have been seriously argued and naturally, because the point was not directly raised for decision.

In this connection we ought to point out that in a subsequent decision of the said High Court in Ijjat Ali Talukdar 's case (2) a contrary view has been (1) ; (2) I.L.R. [1944] I Cal.

397 taken and it is the subsequent view which has prevailed in the Calcutta High Court thereafter.

In Khawaja Nazir Ahmad vs The Crown (1) the High Court of Judicature at Lahore has held that when a privilege is claimed under section 123 the Court simply gives effect to the decision of the head of the department by adding its own command to it but the Court.

has no power to examine the document in order to verify the correctness of the allegations or the grounds on which the privilege is claimed.

Abdur Rahman, J., who delivered the judgment of the Bench in that case, has considered the relevant Indian and English decisions, and has based his conclusion substantially on the judgment of the House of Lords in Duncan vs Cammell Laird & Co. Ltd. (2), to which we will presently refer.

The learned judge appears to have con strued section 162 in the manner suggested by Mr. Seervai.

In fact Mr. Seervai 's argument was that the construction placed by Abdur Rahman, J. on section 162 had not been considered by the other Indian decisions when they brushed aside his conclusion.

"I feel convinced", said Abdur Rahman, J., "that the objection as to the production of the document, apart from its admissibility (for want of registration or contravening the rule as to when secondary evidence of a document can be admitted if the document is merely a copy and not original) can only be decided by its inspection by the Court, followed, as it must necessarily.

have been, by an order of production, although not in the sense of its contents having been disclosed to the party summoning the document at any rate at that stage".

We have already indicated our reasons for not accepting this artificial construction of the second clause in section 162.

This decision also has been dissented from by a Full Bench of the Lahore High Court in Governor General in Council vs H. Peer Mohd. Khuda Bux & Ors.

(3) and the view taken by the Full Bench in that case prevails in the Punjab High Court ever since.

In the course of arguments before us a large number of English decisions have been cited by the learned (1) Lah.

(2) ; (3) A.I.R. 1950 East Punjab 228.

398 counsel appearing for both the parties.

Having regard to the fact that our decision ultimately rests, as it must, on the construction of the relevant provisions of the Act, we do not think it necessary to refer to all the cases to which our attention was drawn; we propose to confine ourselves to three decisions which have made a substantial contribution to the discussion of the problem, and which represent three distinct and different trends of judicial opinion on the point with which we are dealing.

The first case to which we would refer is the decision of the Privy Council in Robinson vs State of South Australia In that case the appellant had brought an action in the Supreme Court of South Australia against the respondent State claiming damages for alleged negligence in the care of wheat placed in the control of the State under the Wheat Harvests Acts, 1915 17.

Upon an order for discovery the respondent State, by an affidavit made by a civil servant, claimed privilege in respect of 1892 documents tied in three bundles, and stated to be State documents comprising communications between officers administering the department concerned.

There was exhibited to the affidavit a minute by the responsible Minister stating, inter alia, that the disclosure of the documents would be contrary to the interests of the State and of the public.

The claim for privilege had been upheld by the Australian Courts but it was rejected by the Privy Council which held that the minute was inadequate to support the claim; it was too vague in the circumstances of the case, and was not a statement on oath showing that the Minister had himself considered each of the documents, or indicating the nature of the suggested injury to the interests of the public.

The Privy Council, therefore, directed that the Supreme Court of South Australia should exercise its power under O. 31, r. 14, sub r. (2), to inspect the documents, because it thought that the said course was less likely to cause delay than an order for a further and better affidavit of documents.

The litigation in that case had been preceded by another litigation, and on the (1) 399 facts thus disclosed the Privy Council was satisfied that the action in question was one of a large number which were then pending, and against which a similar relief was claimed, all being alike dependent for success upon the establishment of the same facts.

That is how full discovery by the respondent had become "the immediately vital issue between the parties".

Dealing with the merits of the privilege the Privy Council cited with approval Taylor 's observation that "the principle of the rule is concern for public interest, and the rule will accordingly be applied no further than the attainment of that object requires"(1).

Lord Blanesburgh, who delivered the judgment of the Board observed that "it cannot be assumed that documents relating to trading, commercial or contractual activities of the State can never be claimed to be protected under this head of privilege", but he added that "the cases in which this is so must, in view of the sole object of the privilege, and especially in time of peace, be rare indeed".

Then he referred to the fact that in view of the increasing extension of State activities into the spheres of trading business and commerce, and of the claim of privilege in relation to the liabilities arising therefrom which were frequently put forward, it is necessary for the Courts to remember that while they must duly safeguard genuine public interests they must see to it that the scope of the admitted privilege is not, in such litigation, extended.

The judgment then proceeds to add that in truth the fact that documents if produced might have any such effect upon the fortunes of the litigation is of itself a compelling reason for their production one only to be overborne by the gravest considerations of State policy or security.

Then the power of the Court to call for the production of documents for which privilege was claimed was examined in the light of previous decisions, and in the light of the provisions of O. 31, r. 14, sub r.

"Where, as in the present case", it was observed, "the State is not only sued as defendant under the authority of statute, but is in the suit bound to give discovery, there seems little, if any, (1) Taylor on "Evidence", s.939.

400 reason why the Court in relation to this privileged class of its documents should have any less power than it has to inspect any other privileged class of its documents, provided of course, that such power be exercised so as not to destroy the protection of the privilege in any case in which it is found to exist".

The procedure which should be adopted in claiming the privilege was then considered, and it was held that the affidavit produced, which in its sweep covered no fewer than 1892 documents in number, was of the vaguest generality and as such unsatisfactory.

The Privy Council then considered the question as to whether a further opportunity should be given to the State to make a better affidavit but it thought that it would be inexpedient to adopt such a course because it ,would involve further serious delay, "without, it may be, advancing any further the final solution to the question at issue".

That is why the Supreme Court was asked to exercise its power under the relevant rule to inspect the documents and then decide whether the privilege should be upheld or not.

It is significant that even when giving such a direction their Lordships took the precaution of adding that the judge, in giving his decision as to any document, will be careful to safeguard the interest of the State and will not, in any case of doubt, resolve the doubt against the State without further enquiry from the Minister.

It only remains to add that so far as Australia is concerned it does not appear that there is any statutory provision corresponding to section 162 of the Act, and so, even after this judgment was pronounced by the Privy Council, Courts in India have not given effect to the operative part of the order in regard to the inspection of the document by Courts having regard to the statutory prohibition imposed by section 162 in that behalf.

This pronouncement of the Privy Council was subsequently criticised by the House of Lords in Duncan & Anr.

vs Cammell Laird & Co. Ltd. (1).

It appears that the submarine Thetis which had been built up by the respondents under contract with the Admiralty was undergoing her submergence tests in Liverpool Bay, and, while engaged in the operation of a 401 trial drive, sank to the bottom owing to the flooding of her two foremost compartments and failed to return to the surface with the result that all who were in her, except four survivors were overwhelmed.

This unfortunate accident gave rise to a large number of actions against the respondents for damages for negligence.

Pending the trial of the said claims the plaintiffs wanted discovery of certain specified documents to which the defendants objected, and the objection of the defendants was supported by Mr. Alexander who was the First Lord of the Admiralty 'in his affidavit made in that behalf.

The documents to the production of which an objection was thus raised included (either in original or as a copy) the contract for the hull and machinery of the Thetis and other letters and reports.

The Master before whom the objection was raised refused to order inspection.

His decision was confirmed by Hilbery, J., sitting in Chambers, and the Court of Appeal unanimously confirmed the judge 's order.

The plaintiffs, however, were given leave to appeal to the House of Lords; that is how the matter reached the House of Lords.

Viscount Simon, L. C., who pronounced a composite judgment on behalf of himself and on behalf of Lord Thankerton, Lord Russel of Killowen and Lord Clauson, exhaustively considered the whole law on the subject of Crown Privilege; and in his speech he made the categorical statement that in his opinion the Privy Council was mistaken in regarding the Australian rule of procedure as having any application to the subject matter and in ordering the inspection of the documents which were in question before the Privy Council.

Viscount Simon began his speech with the consideration of the previous decisions of the House of Lords, and held that the matter in substance was concluded by previous authorities in favour of upholding the objections.

He observed that the common law principle is well established that, where the Crown is a party to a suit, discovery of documents cannot be demanded from it as a matter of right, though in practice, for reasons of fairness and.

in the 51 402 interests of justice, all proper disclosure and production would be made.

As a result of the examination of the several decisions Viscount Simon deduced the principle which has to be applied in such cases in these words: "Documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld.

This test may 'be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as a class be with held from production".

In this connection he stated that public interest may be damnified where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.

Then he proceeded to examine the question as to whether when objection has been duly taken the judge should treat it as conclusive; and his answer was that an objection validly taken to production on the ground that this would be injurious to public interest is conclusive; but, of course, he proceeded to make pertinent observations for the guidance of those who are entrusted with the power to make a claim.

It would be noticed that even this decision would not be of material assistance to us because, as we have repeatedly pointed out, our decision must ultimately rest on the relevant statutory provisions contained in the ; and so, the conclusion that a valid certificate issued by the Minister in charge is conclusive may not be strictly applicable to a claim for privilege similarly made by a Minister in charge in India.

As we have already indicated, the preliminary enquiry contemplated by the first clause of section 162 has to be held by the Court, and it is after the Court has found in favour of the character of the document pleaded by the State that the occasion arises for the head of the department to exercise his discretion conferred by section 123.

Incidentally, we may point out that Lord Thankerton and Lord Russel of Killowen, who were parties to this 403 decision, were also parties to the decision of the Privy Council in the case of Robinson (1).

In regard to the decisions in the cases of Robinson (1) and Duncan (2 ) respectively, it may be permissible to make one general observation.

In both these cases the nature of the documents for which privilege was claimed, the time at which the dispute arose and the other surrounding circumstances were very unusual and special though in different ways, and so, as often happens, the shift in emphasis from one aspect of the same principle to another and the strong language used took colour from the nature of the special facts.

Incidentally we may also add that the epilogue to the decision in Robinson 's case (1) illustrates what untoward consequences may follow from an erroneous decision or a miscalculation as to the injury to public interest which may be caused by disclosure.

* Nearly five years after the judgment in Duncan 's case (2) was pronounced, the Crown Proceedings Act (10 & 11 Geo. 6, c. 44) was passed in 1947, and the Crown Privilege recognised under the common law of England is now regulated by section 28 of the said Act.

Section 28 which deals with discovery provides in substance that subject to the rules of court in any civil proceedings there specified the Crown may be required by the Court to make discovery of documents and produce documents for inspection, and that in such proceedings the Crown may also be required to answer interrogatories.

This legislative invasion of the Crown 's prerogative is, however, subject to the proviso that the said section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to public interest.

It would be noticed that section 28 read with the proviso confers on the Courts specified by it powers which are much narrower than (1) (2) ; *For a graphic account of the aftermath of the enquiry held by the Supreme Court of South Australia, pursuant to the Privy Council 's decision in Robinsons 's case (i), see "Law and Orders" by Sir C. K. Allen, 2nd Ed.

,P. 374, foot note 5a.

404 those which are conferred on the Indian Courts under cl. 1 of section 162 of the Act.

In the decision in Duncan 's case (1) Viscount Simon had assumed that the law as laid down by the said decision was equally applicable to Scotland.

This assumption has been seriously challenged by another decision of the House of Lords in Glasgow Corporation vs Central Land Board (2).

In that case Viscount Simonds has referred to a large number of earlier decisions dealing with the relevant law as it is administered in Scotland and commented on the decision in Duncan 's case (1) by saying that the observations in the said case, in so far as they relate to the law of Scotland must be regarded as obiter dicta.

"In the course of the present appeal", added Lord Simonds, "we have had the advantage of an exhaustive examination of the relevant law from the earliest times, and it has left me in no doubt that there always has been, and is now, in the law of Scotland an inherent power of the Court to override the Crown 's objections to produce documents on the ground that it would injure the public interest to do so", though he added that " very rarely in recent times has this inherent right been exercised".

Lord Radcliffe, who agreed with the conclusion of the House with some reluctance, has made strong comments on the plea of privilege which is raised on behalf of the Crown in such matters.

Adverting to the contention that the public interest may be injured by the production of the document Lord Radcliffe observed that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown.

According to Lord Radcliffe it was not unreasonable to expect that the Court would be better qualified than the Minister to measure the importance of such principles in application to the particular case that is before it.

It is on that assumption that the Scottish Law has reserved to the Courts the duty of making some assessment of the relative (1) ; (2) (1956) Soots Law Times Reports 41.

405 claims of the different aspects of public interest where production of a document is objected to by the Crown.

Then, in his characteristic style Lord Radcliffe has observed "I should think it a very great pity indeed if a power of this kind, a valuable power, came to be regarded as a mere ghost of theory having no practical substance, and the Courts abdicated by disuse in the twentieth century a right of control which their predecessors in the earlier centuries have been insistent to assert".

The learned law Lord has also made some strong comment on the formula which has been evolved by Viscount Simon in Duncan 's case (1), and had stated, that the phrase "necessary for the proper functioning of the public service" is a familiar one, and I have a misgiving that it may become all too familiar in the future".

The result of this decision appears to be that in Scotland, where the common law doctrine of the Crown Privilege is not strictly enforced, a privilege can be claimed by the Minister on grounds set forth by him in his affidavit.